Exhibit 99.3
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT, dated as of September 17, 1999 (this
"Agreement") by and between Telephone and Data Systems, Inc., a Delaware
corporation and stockholder (the "Stockholder") of Aerial Communications, Inc.,
a Delaware corporation (the "Company"), and VoiceStream Wireless Corporation, a
Washington corporation, and VoiceStream Wireless Holding Corporation, a Delaware
corporation (collectively, "Parent").
RECITALS
WHEREAS, the Company, Parent, VoiceStream Subsidiary III
Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent
("Sub"), and Stockholder are entering into an Agreement and Plan of
Reorganization, dated as of September 17, 1999 (the "Reorganization Agreement"),
providing for, among other things, the merger of Sub with and into the Company
and the conversion of shares of Company Common Stock into shares of Parent
Common Stock;
WHEREAS, the Stockholder owns beneficially and of record
40,000,000 Company Series A Common Shares and 19,086,000 Company Common Shares
(such shares of Company Common Stock, together with any other shares of capital
stock of the Company of which such Stockholder acquires beneficial ownership
after the date hereof and during the term of this Agreement, being collectively
referred to herein as the "Subject Shares");
WHEREAS, as a condition to its willingness to enter into the
Reorganization Agreement, Parent has required that the Stockholder agree, and in
order to induce Parent to enter into the Reorganization Agreement, the
Stockholder has agreed, to enter into this Agreement; and
WHEREAS, a condition of its willingness to enter into this
Agreement, Stockholder has required that Parent agree, and in order to induce
Stockholder to enter this Agreement, Parent has agreed, to enter into the
Registration Rights Agreement attached hereto as Exhibit A.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, the parties hereto agree as
follows:
1. Capitalized Terms. Capitalized terms used in this Agreement
that are not defined herein shall have such meanings as set forth in the
Reorganization Agreement.
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2. Covenants of Stockholder. Until the termination of this
Agreement in accordance with Section 6, Stockholder agrees as follows:
(a) At any stockholders meeting (or at any
adjournment thereof) or in any other circumstances upon which a vote,
consent or other approval with respect to the Reorganization or the
Reorganization Agreement is sought, the Stockholder shall vote (or
cause to be voted) the Subject Shares in favor of the Reorganization,
the approval and adoption of the Reorganization Agreement and the
approval of the terms thereof and each of the other transactions
contemplated by the Reorganization Agreement.
(b) At any meeting of stockholders of the Company (or
at any adjournment thereof) or in any other circumstances upon which a
vote, consent or other approval is sought, other than with respect to
the Reorganization or Reorganization Agreement, the Stockholder shall
vote (or cause to be voted) the Subject Shares against any merger
agreement or merger, consolidation, sale of all or substantially all of
the assets of the Company, or reorganization, recapitalization,
dissolution, liquidation or winding up of or by the Company or any
Subsidiary of the Company or any other Acquisition Proposal. The
Stockholder further agrees not to commit or agree to take any action
inconsistent with the foregoing.
(c) The Stockholder agrees not to (i) sell, transfer,
pledge, encumber, assign or otherwise dispose of (including by gift)
(collectively, "Transfer"), or enter into any contract, option or other
arrangement (including any profit-sharing arrangement) with respect to
any Transfer of the Subject Shares to any person (other than Parent) or
(ii) enter into any voting arrangement, whether by proxy, voting
agreement or otherwise (collectively, "Voting Agreement"), in relation
to the Subject Shares, and agrees not to commit or agree to take any of
the foregoing actions.
(d) The Stockholder shall not, nor shall the
Stockholder authorize any affiliate, director, officer, employee,
investment banker, attorney or other advisor or representative of the
Stockholder to, (i) directly or indirectly solicit, initiate or
encourage the submission of, any Acquisition Proposal or, (ii) directly
or indirectly participate in any discussions or negotiations regarding,
or furnish to any person any information with respect to, or take any
other action to facilitate any inquiries or the making of any proposal
that constitutes or may reasonably be expected to lead to, any
Acquisition Proposal or (iii) directly or indirectly take or
participate in any actions set forth in Section 5.3 of the
Reorganization Agreement.
(e) The Stockholder shall not convert any Company
Series A Common Shares into Company Common Shares.
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(f) The Stockholder shall use all reasonable efforts
to take, or cause to be taken, all actions, and to do, or cause to be
done, and to assist and cooperate with Parent in doing, all things
necessary, proper or advisable to consummate and make effective, in the
most expeditious manner practicable, the Reorganization and the other
transactions contemplated by the Reorganization Agreement.
(g) Stockholder hereby irrevocably waives any rights
of appraisal or rights to dissent from the Reorganization that
Stockholder may have.
(h) At or prior to the Effective Time, Stockholder
shall take the following actions contemplated by the Reorganization
Agreement:
(i) execute and deliver the Transition
Services Agreement;
(ii) execute and deliver the agreement
attached as Annex E to the Reorganization Agreement;
(iii) agree to the termination of the
Intercompany Service Agreements;
(iv) execute and deliver the agreement
attached as Annex F to the Reorganization Agreement;
(v) agree to the action set forth in Section
6.21 of the Reorganization Agreement relating to the Series A Notes and
Series B Notes, subject to the release and discharge in full of the
Series A Guaranty and the Series B Guaranty;
(vi) agree to the action set forth in
Section 6.22 of the Reorganization Agreement, subject to the release
and discharge in full of the Nokia Guaranty;
(vii) settle all Intercompany Accounts in
cash on or prior to the Effective Time; and
(viii) execute and deliver the Investor
Agreement attached as Annex H to the Reorganization Agreement; and
(ix) agree to the termination of the Tax
Allocation Agreement on or prior to the Effective Time.
(i) In the event the Company is required to pay the Termination
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Fee to Parent pursuant to Section 6.9 of the Reorganization Agreement,
Series A Stockholder agrees to increase the amount available for
borrowing under the Revolving Credit Agreement to the extent the
Company has insufficient funds to make such payment.
Notwithstanding anything to the contrary herein, nothing
herein shall limit or restrict the exercise of the fiduciary obligations of the
Company's Board of Directors or the actions which the Company is permitted to
take under the terms of the Reorganization Agreement, provided, however,
Stockholder shall continue to be bound by the terms of this Agreement.
3. Covenant of Parent. On or prior to the Effective Time (as
defined in the Reorganization Agreement), Parent shall enter into the
Registration Rights Agreement with Stockholder in the form attached hereto as
Exhibit A.
4. Representations and Warranties of Stockholder. The
Stockholder represents and warrants (which representations shall continue for
the term of this Agreement) to Parent as follows:
(a) Stockholder has the legal capacity, power and
authority to enter into and perform all of Stockholder's obligations
under this Agreement. The execution, delivery and performance of this
Agreement by Stockholder has been duly authorized by all requisite
corporate action and does not violate Stockholder's charter, bylaws or
any other instrument or agreement or any law, regulation or order
applicable to Stockholder or its assets, including, without limitation,
any voting agreement, stockholders agreement or voting trust. This
Agreement has been duly and validly executed and delivered by
Stockholder and constitutes a valid and binding agreement of
Stockholder, enforceable against Stockholder in accordance with its
terms.
(b) (i) the Stockholder is the record and beneficial
owner of, and has good and marketable title to, the Subject Shares,
(ii) the Stockholder does not own, of record or beneficially, any
shares of capital stock of the Company other than the Subject Shares
and (iii) the Stockholder has the sole right to vote, the sole power of
disposition with respect to, and the sole power to demand appraisal
rights with respect to, the Subject Shares, and none of the Subject
Shares is subject to any voting trust, proxy or other agreement,
arrangement or restriction with respect to the voting or disposition of
such Subject Shares, except as contemplated by this Agreement.
(c) The Subject Shares and the certificates
representing such Shares are now held by Stockholder, or by a nominee
or custodian for the benefit of such Stockholder, free and clear of all
liens, claims, security interests or other encumbrances.
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5. Representations and Warranties of Parent. Parent represents
and warrants to Stockholder as follows:
(a) Parent has the legal capacity, power and
authority to enter into and perform all of Parents's obligations under
this Agreement. The execution, delivery and performance of this
Agreement by Parent has been duly authorized by all requisite corporate
action and does not violate Parent's charter, bylaws or any other
instrument or agreement or any law, regulation or order applicable to
Parent or its assets. This Agreement has been duly and validly executed
and delivered by Parent and constitutes a valid and binding agreement
of Parent, enforceable against Parent in accordance with its terms.
(b) Parent has the legal capacity, power and
authority to enter into and perform all of Parents's obligations under
the Registration Rights Agreement. The execution, delivery and
performance of the Registration Rights Agreement by Parent has been
duly authorized by all requisite corporate action and does not violate
Parent's charter, bylaws or any other instrument or agreement or any
law, regulation or order applicable to Parent or its assets. Upon the
due and valid execution and delivery of the Registration Rights
Agreement by the parties thereto, the Registration Rights Agreement
shall constitute a valid and binding agreement of Parent, enforceable
against Parent in accordance with its terms.
6. Termination. This Agreement shall terminate as follows:
(a) By Stockholder. The obligations of the
Stockholder hereunder shall terminate upon the earlier of (i) the
Effective Time or (ii) the termination of the Reorganization Agreement
pursuant to Section 8.1 thereof.
(b) By Parent. The obligations of Parent hereunder
shall terminate in the event of the termination of the Reorganization
Agreement pursuant to Section 8.1.
7. Further Assurances. Stockholder and Parent will, from time
to time, execute and deliver, or cause to be executed and delivered, such
additional or further consents, proxies, documents and other instruments as the
other may reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement.
8. Successors, Assigns and Transferees Bound. This Agreement
shall be binding upon the successors, assigns and transferees of the parties
hereto, and the parties hereto shall take any and all actions necessary to
obtain the written confirmation from any such successor, assignee or transferee
that it is bound by the
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terms hereof.
9. Remedies. Each party hereto acknowledges that money damages
would be both incalculable and an insufficient remedy for any breach of this
Agreement by it, and that any such breach would cause the other party
irreparable harm. Accordingly, each party agrees that in the event of any breach
or threatened breach of this Agreement, the other party, in addition to any
other remedies at law or in equity it may have, shall be entitled, without the
requirement of posting a bond or other security, to equitable relief, including
injunctive relief and specific performance.
10. Submission to Jurisdiction. Each party hereto hereby
irrevocably submits in any suit, action or proceeding arising out of or related
to this Agreement or any of the transactions contemplated hereby or thereby to
the exclusive jurisdiction of the United States District Court for the District
of Delaware and the jurisdiction of the courts of the State of Delaware and
waive any and all objections to jurisdiction that they may have under the laws
of the State of Delaware or the United States and any claim or objection that
any such court is an inconvenient forum.
11. Severability. The invalidity or unenforceability of any
provision of this Agreement in any jurisdiction shall not affect the validity or
enforceability of any other provision of this Agreement in such jurisdiction, or
the validity or enforceability of any provision of this Agreement in any other
jurisdiction.
12. Amendment. This Agreement may be amended only by means of
a written instrument executed and delivered by each of the Stockholder and
Parent.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
DELAWARE, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN
UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
14. Counterparts. For the convenience of the parties, this
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
15. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally, sent by
overnight courier (providing proof of delivery) or telecopied (with a
confirmatory copy sent by overnight courier) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
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(a) if to Parent, to
VoiceStream Wireless Corporation
0000 000xx Xxxxxx XX, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: General Counsel
Telecopy No.: 000-000-0000
with a copy to:
Xxxxxxx Xxxxx, & Xxxxx XXX
0000 Xxxxxxxx Center
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Esq.
Telecopy No: 206-623-7022
(b) if to the Stockholder, to:
Telephone and Data Systems, Inc.
00 Xxxxx XxXxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Chairman
Telecopy No.: 000-000-0000
with a copy to:
Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Facsimile No.: 312-853-7036
* * * * * *
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IN WITNESS WHEREOF, the parties have signed this Agreement as
of the date noted above.
TELEPHONE AND DATA SYSTEMS, INC.
By: /s/ XxXxx X. Xxxxxxx, Xx.
-----------------------------
Name: XxXxx X. Xxxxxxx, Xx.
Title: President
VOICESTREAM WIRELESS CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President
Strategy, Finance and Development
VOICESTREAM WIRELESS HOLDING
CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President -
Strategy, Finance and Development
SIGNATURE PAGE TO STOCKHOLDER AGREEMENT
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